People v. Algire ( 2013 )

Filed 12/17/13
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B244557
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. NA090057)
v.
JOSE ARMANDO ALGIRE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Tomson T. Ong, Judge. Affirmed.
Bernstein Law Office, Inc., Bob Bernstein and Nathaniel Clark for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys General, for Plaintiff
and Respondent.
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of part B of the Discussion.
Appellant Jose Armando Algire challenges his conviction for forcible sexual
penetration. He maintains that the trial court erred in admitting a recorded
conversation, denying a continuance, and limiting his expert‟s testimony. In the
published portion of this opinion, we reject appellant‟s contention that the trial
court contravened the exclusionary rule in Penal Code section 632, subdivision (d),
in admitting an audio recording of a conversation between appellant and his victim.
We conclude that the “Right to Truth-in-Evidence” provision of the California
Constitution (Cal. Const., art. I, § 28, subd. (f), par. (2)), as enacted by the passage
of Proposition 8 in 1982, abrogated that exclusionary rule. In the unpublished
portions of the opinion, we reject appellant‟s remaining contentions. We therefore
affirm.
PROCEDURAL BACKGROUND
On March 14, 2012, an information was filed, charging appellant with
sexual penetration with a foreign object (Pen. Code § 289, subd. (a)(1)).1
Appellant pleaded not guilty. A jury found appellant guilty as charged. On
October 3, 2012, the trial court sentenced appellant to a term of eight years in
prison.
FACTS
A. Prosecution Evidence
Stevie J., appellant‟s victim, is also his step-daughter.2 Stevie was born in
China in 1988. In April 2006, following her mother‟s marriage to appellant, Stevie
1 All further statutory citations are to the Penal Code, unless otherwise indicated.
2 Although the information identifies the victim as Wen S., Stevie testified that she
changed her name from Wen S. when she became a United States citizen.
2
came to the United States to live with her mother, appellant, and his two children.
She was then 17.
Stevie testified as follows: When she took up residence with appellant, he
repeatedly hugged her. Stevie initially believed that his conduct was a “Western
cultural thing,” as it did not occur in China. Appellant soon began trying to kiss
her during the hugs, and also engaged in other inappropriate behavior. On one
occasion, he told her that when he was young, a neighbor compensated him for
mowing her lawn by having sex with him. On another occasion, appellant
approached her from behind while she was reading a book, and placed his hands on
her breasts. When Stevie pushed him away, he said that if she discussed the
incident with her mother, he would “kick [Stevie] back to China.” Stevie said
nothing to her mother regarding appellant‟s misconduct because she did not want
to endanger her mother‟s marriage.
On October 25, 2006, while Stevie‟s mother was absent, appellant asked
Stevie to enter his bedroom. When she did so, he pushed her onto the bed and
kissed her. He then moved his hands to her underwear and inserted his fingers into
her vagina. Stevie struggled away from him, went to her room, and locked the
door. Appellant said through the door, “If you tell anyone[] else[,] including your
mom, I‟m going to kick you guys back to China and your green card is over, the
marriage is over.” Stevie contacted a friend, who accompanied Stevie to a park.
There, Stevie told the friend only that appellant had threatened her. Stevie did not
expressly report appellant‟s sexual misconduct to anyone, as she was fearful that
doing so would end her mother‟s marriage.
In December 2006, after her natural father died in China, Stevie visited
China for approximately six months. During Stevie‟s visit, appellant informed her
by e-mail that he wanted to teach her about sex. She rejected his proposal.
3
In May 2007, following Stevie‟s return from China, appellant again asked
her to enter his bedroom. She refused to do so, but stood in the bedroom doorway.
Appellant directed her attention to a computer screen, which displayed a
pornographic image involving a man and woman. When he asked whether Stevie
wanted him to do what the image showed, she refused and tried to leave, but he
grabbed her arm. She kicked him and ran to her room. Stevie related the incident
to no one.
A few days later, while appellant was giving Stevie a driving lesson, he
asked whether she wanted him to teach her about sex. He explained that it was
permissible for him to do so because she was not his “blood daughter.” When she
replied that she did not want to learn about sex from him, he said, “[S]chool‟s over,
[your] green card is over, and you [will] go back to China.” Because Stevie‟s
conditional green card expired in 2008, she understood appellant to mean that he
intended to send her back to China.
Immediately after the incident, Stevie contacted Tae Boettcher, whom she
knew through her karate class. When Stevie told her that appellant wished to have
sex with Stevie and threatened her immigration status, Boettcher arranged for
Stevie to see a counselor at the high school she had attended. Before talking to the
counselor, Stevie told her mother that appellant had acted improperly toward her.
The counselor directed Stevie to the high school police, who told her they could
not offer assistance because she was then 18 years old. In addition, the counselor
located an alternative residence for Stevie and urged her to move out of appellant‟s
house. Stevie decided to do so. After moving out of appellant‟s residence, she
found employment in a food court in a shopping mall, and met Torrance Police
Department Officer Steven Janguard, who also worked in the mall.
In December 2007, appellant told Stevie and her mother that they needed to
contact a lawyer in order to renew Stevie‟s green card. Later, in January 2008,
4
appellant and Stevie went to their lawyer‟s office in order to sign some paperwork.
Although Stevie‟s mother was supposed to accompany them, she was not present.
After meeting with the lawyer, appellant and Stevie had a conversation. While
appellant talked to her, he used the word “orgasm,” which she did not understand.
According to Stevie, she had a practice of recording conversations “[t]o help [her]
. . . learn English.” She thus began recording their conversation. 3
During the conversation, appellant stated that the last time he touched
Stevie, she was not “wet at all,” and that he believed that she needed instruction in
sex from him because her body did not “understand what [was] happening.” She
rejected his proposal. Stevie‟s recording of the conversation was played for the
jury.
After the incident, Stevie told Janguard that she had “issues” with appellant.
Janguard suggested that Stevie arrange a meeting with appellant at the mall where
she worked, so that Janguard could try to overhear their conversation. Although
the meeting occurred, appellant said little during it. Shortly afterward, Stevie
received a letter from appellant. The letter stated that if she stopped making her
accusations against him, he would assist her in obtaining her a green card. She did
not respond to the letter. Later, her lawyer told her that appellant had withdrawn
his sponsorship of her green card application. She asked for advice from Janguard,
who later acted as her sponsor.
Stevie had no further dealings with appellant, and did not participate in his
and her mother‟s divorce. In 2009, Stevie had her breasts removed because they
reminded her of what appellant had done to her. In April 2010, after the renewal
of Stevie‟s green card, she reported appellant‟s sexual misconduct to the police.
3 The conversation was recorded on Stevie‟s cell phone.
5
Boettcher testified that she became friends with Stevie through Stevie‟s
karate lessons. According to Boettcher, when Stevie told her that appellant had
“touched” her, Boettcher arranged for Stevie to meet with a counselor and police
officers at Stevie‟s high school. In addition, Boettcher helped Stevie find a new
place to live.
Officer Janguard testified that he met Stevie in a mall where they both
worked. In January 2008, while in the mall‟s food court, Stevie told him that she
was having problems with appellant, but did not specify the nature of the problems
or identify them as a crime. In addition, she played an audio recording of a
conversation between Stevie and appellant. According to Janguard, the
background noise in the food court made the recording difficult to understand, but
it appeared to Janguard that appellant had made inappropriate remarks to Stevie.
After consulting with a police sergeant, Janguard asked Stevie to arrange a
meeting with appellant in the mall. When the meeting took place, Janguard
approached appellant and asked him to “listen to Stevie” because “there [was]
some inappropriate talking going on.” Appellant said nothing to Janguard.
Janguard then walked away from Stevie and appellant. Although he saw them
talking, he did not overhear their conversation. A few weeks later, Stevie told
Janguard that appellant had withdrawn his support for her green card. After
learning that Stevie needed to renew her green card, Janguard and his wife agreed
to act as her sponsors.4
4 The prosecution also called attorney Arnoldo Casillas as a witness. In testifying,
Stevie stated that she was unaware that a civil lawsuit against appellant had been filed on
her behalf. Casillas testified that Stevie had authorized him to file a civil lawsuit against
appellant only after the criminal action against him was completed, and that he initiated
the civil lawsuit without her knowledge.
6
B. Defense Evidence
Appellant, who testified on his own behalf, denied any misconduct regarding
Stevie. He stated that after he married Stevie‟s mother and sponsored her for
citizenship, she asked him to arrange for Stevie to live with them. When Stevie
arrived, she disregarded his authority, used profane language, and performed few
household chores. She also dressed like a boy, and viewed pornography on her
laptop.
According to appellant, he became concerned whether he should take
responsibility for Stevie‟s conduct by sponsoring her for a green card. After Stevie
returned from her visit to China, he told her that he would not “renew [her] visa.”
Regarding the conversation that Stevie recorded, appellant denied that he made any
remarks referring to an event during which he touched her. At trial, appellant
asserted that no such remarks were audible on the recording, and that the recording
had been “doctored.” Appellant also maintained that during the conversation, he
intended only to encourage Stevie to learn about her sexuality.
Appellant further testified that after the conversation occurred, Stevie asked
appellant to meet her at a shopping mall. There, Officer Janguard told appellant to
“shut up and listen” to Stevie. Stevie then played her recording of the conversation
for appellant, but the recording was inaudible. Later, appellant wrote a letter
informing Stevie that he would assist her in obtaining a new visa only if she
stopped her accusations against him. At trial, appellant maintained that Stevie‟s
accusations were baseless, and that she had been engaged in “extortion.”
Thomas Guzman-Sanchez, an expert in audio analysis, opined that Stevie‟s
audio recording had been edited. According to Guzman-Sanchez, the four-minute
recording disclosed a single edit at approximately the mid-point of the recording.
Yi Fan Shang, who attended high school with Stevie, testified that they
shared secrets while they were classmates. During that time, Stevie told her that
7
she was a lesbian. Stevie‟s only complaints against appellant were that he verbally
abused her and touched her breasts. In addition, on one occasion, Stevie asked her
to pick her up from her house. They went to a park, where Stevie told her that
appellant had tried to touch her. Not until 2011 did Stevie suggest that appellant
had sexually assaulted her.
Gloria Kalatzis, a counselor at Stevie‟s high school, testified that Stevie told
her only that appellant verbally abused her. She provided information regarding
shelters to Stevie, who responded that she was not interested in living in a shelter.5
DISCUSSION
Appellant contends the trial court erred in admitting the audio recording of
his conversation with Stevie, denying his request for a continuance, and limiting
his expert‟s testimony. For the reasons discussed below, we disagree.
A. Admission of Audio Recording
Appellant contends the trial court contravened section 632 in admitting the
audio recording of his conversation with Stevie. That statute is a provision of the
Invasion of Privacy Act (§ 630 et seq.), enacted in 1967. (Stats. 1967, ch. 1509,
p. 3584, §1.) The Invasion of Privacy Act regulates wiretapping and electronic
eavesdropping (People v. Chavez (1996) 44 Cal. App. 4th 1144, 1148), with the aim
of limiting “intentional, as opposed to inadvertent, overhearing or intercepting of
communications.” (People v. Buchanan (1972) 26 Cal. App. 3d 274, 287.)
Generally, section 632 “prohibits eavesdropping or intentionally recording a
5 In addition to these witnesses, Kenneth and Tracy Algire, appellant‟s children,
testified that while Stevie lived with them, she wore boyish clothes, had girlfriends, and
viewed lesbian pornography on her laptop.
8
confidential communication without the consent of all parties to the
communication. [Citation.]”6 (Coulter v. Bank of America (1994) 28 Cal. App. 4th
923, 928; § 632, subd. (a).) Absent specified exceptions, the statute bars the
admission of any such recorded confidential communications in judicial
proceedings. (§§ 632, subd. (d), 633, 633.1, 633.5, 633.6, 633.8.) Pertinent here is
the exception stated in section 633.5, which provides that nothing in section 632
“prohibits one party to a confidential communication from recording the
communication for the purpose of obtaining evidence reasonably believed to relate
to the commission by another party to the communication of . . . any felony
involving violence against the person,” or “renders any evidence so obtained
inadmissible in a prosecution for . . . any felony involving violence against the
person . . . .”
Appellant maintains that the trial court erred in admitting Stevie‟s audio
recording under the exception described above. Regarding this contention, the
record discloses that during the preliminary hearing, Stevie testified that she
recorded her conversation with appellant solely to help her learn English, and not
to support her claim that appellant had engaged in criminal conduct. Before trial,
appellant objected to the admission of Stevie‟s audio recording on the basis of
section 632. In response, the prosecutor argued that the recording fell within the
exception stated in section 633.5, and alternatively, that Proposition 8 had
abrogated the statutory rule requiring the exclusion of such evidence. The trial
6 Subdivision (c) of section 632 provides: “The term „confidential communication‟
includes any communication carried on in circumstances as may reasonably indicate that
any party to the communication desires it to be confined to the parties thereto, but
excludes a communication made in a public gathering or in any legislative, judicial,
executive or administrative proceeding open to the public, or in any other circumstance in
which the parties to the communication may reasonably expect that the communication
may be overheard or recorded.”
9
court concluded that the recording was admissible under section 633.5. Later,
during the trial, Stevie again testified that she recorded the conversation to “help
[her] learn English.”
It is unnecessary for us to determine the propriety of the court‟s ruling under
section 633.5, as the recording was admissible on the alternative ground offered by
the prosecutor. On appeal, we will affirm the admission of the recording on any
theory properly established by the record. (People v. Mason (1991) 52 Cal. 3d 909,
944.) As explained below, Proposition 8 abrogated the exclusionary rule upon
which appellant relies.
“[I]n 1982, the California voters passed Proposition 8. Proposition 8 enacted
Article I, section 28 of the California Constitution, which provides in relevant part:
“Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a
two-thirds vote of the membership in each house of the Legislature, relevant
evidence shall not be excluded in any criminal proceeding, including pretrial and
post conviction motions and hearings . . . . ” (Cal. Const., art. I, § 28, subd. (f),
par. (2).) (People v. Lazlo (2012) 206 Cal. App. 4th 1063, 1069.) The “Truth-in-
Evidence” provision in subdivision (f), paragraph (2), of article I, section 28 of the
California Constitution (section 28(f)(2)) “was intended to permit exclusion of
relevant, but unlawfully obtained evidence, only if exclusion is required by the
United States Constitution . . . .” (In re Lance W. (1985) 37 Cal. 3d 873, 890
(Lance W.).) Section 28(f)(2) is applicable not only to judicially created rules of
exclusion (In re Demetrius A. (1989) 208 Cal. App. 3d 1245, 1247), but also to
statutory evidentiary restrictions (Lance W., supra, 37 Cal.3d at p. 893; People v.
Ratekin (1989) 212 Cal. App. 3d 1165, 1169 (Ratekin)). 7
7 When Lance W. and Ratekin were decided, the “Right to Truth-in-Evidence”
provision enacted by Proposition 8 was found in subdivision (d) of article I, section
(Fn. continued on next page.)
10
In Ratekin, the appellate court examined section 631, a provision of the
Invasion of Privacy Act that closely resembles section 632. As originally enacted
and in its present form, section 631 bars wiretapping without the consent of all
parties to the communication, and states that evidence obtained in contravention of
that prohibition is inadmissible in a judicial proceeding. (Ratekin, supra, 212
Cal.App.3d at p. 1169; § 631, subds. (a), (c).) The appellate court concluded that
section 28(d) abrogated the exclusionary rule in section 631, noting that following
Proposition 8, the Legislature had not reinstated that rule by a two-thirds vote of
the membership in each house of the Legislature. (Ratekin, supra, at p. 1169.)
We confront an issue not presented in Ratekin. As respondent observes, in
1985, the Legislature enacted the Cellular Radio Telephone Privacy Act of 1985
(1985 Act). (Stats 1985, ch. 909, p. 2900.) The focal element of that legislation is
section 632.5, which prohibits the interception of cellular telephone
communications, absent specified circumstances.8 (Stats 1985, ch. 909, pp. 2900-
28 of the California Constitution.
8 Section 632.5 provides: “(a) Every person who, maliciously and without the
consent of all parties to the communication, intercepts, receives, or assists in intercepting
or receiving a communication transmitted between cellular radio telephones or between
any cellular radio telephone and a landline telephone shall be punished by a fine not
exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail
not exceeding one year or in the state prison, or by both that fine and imprisonment. If the
person has been previously convicted of a violation of this section or Section 631, 632,
632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand
dollars ($10,000), by imprisonment in the county jail not exceeding one year or in the
state prison, or by both that fine and imprisonment. [¶] (b) In the following instances,
this section shall not apply: [¶] (1) To any public utility engaged in the business of
providing communications services and facilities, or to the officers, employees, or agents
thereof, where the acts otherwise prohibited are for the purpose of construction,
maintenance, conduct, or operation of the services and facilities of the public utility. [¶]
(2) To the use of any instrument, equipment, facility, or service furnished and used
pursuant to the tariffs of the public utility. [¶] (3) To any telephonic communication
system used for communication exclusively within a state, county, city and county, or
(Fn. continued on next page.)
11
2904.) In enacting the statute, the Legislature also amended section 632 and
related statutes to reflect the addition of section 632.5, without making substantial
changes to the wording of the exclusionary rule set forth in subdivision (d) of
section 632. At least two-thirds of the members of each house of the Legislature
voted in favor of the 1985 Act.9 The question thus presented is whether its
enactment revived the exclusionary rule in subdivision (d) of section 632,
abrogated by section 28(f)(2).
We find dispositive guidance on this issue from Lance W. There, the
Supreme Court addressed subdivision (a) of section 1538.5, which -- as originally
enacted and in its present form – states, inter alia, that a criminal defendant may
seek suppression of evidence obtained through a search or seizure in violation of
“state constitutional standards.” (Lance W., supra, 37 Cal.3d at p. 893; § 1538.5,
subd. (a)(1)(B)(v).) As the court noted, after section 28(d) abrogated that provision
of section 1538.5, the Legislature amended section 1538.5 twice, once by a two-
thirds majority in both houses of the Legislature. (Lance W., supra, at pp. 893-
896.) Because the California Constitution provides that “[a] section of a statute
may not be amended unless the section is re-enacted as amended” (Cal. Const., art.
IV, § 9), and the amendments did not materially modify the pertinent provision of
section 1538.5, the court examined whether the amendments revived that
provision. (Lance W., supra, 37 Cal.3d at pp. 893-896.)
city correctional facility. [¶] (c) As used in this section and Section 635, „cellular radio
telephone‟ means a wireless telephone authorized by the Federal Communications
Commission to operate in the frequency bandwidth reserved for cellular radio
telephones.”
9 The legislative basis of the 1985 Act was Senate Bill No. 1431. (Sen. Final
History, (1985-1986 Reg. Sess.) p. 965.) Regarding that bill, the Assembly vote was 64
ayes and 7 noes, and the Senate vote was 27 ayes and 4 noes. (Ibid.) As the Assembly
has 80 members and the Senate has 40 members (Cal. Const., art. IV, § 2, subd. (a)), the
affirmative votes constituted at least two-thirds of each house‟s membership.
12
The court determined that the amendments did not reinstate the abrogated
provision, as there was no evidence of a legislative intent to do so. (Lance W.,
supra, 37 Cal.3d at pp. 893-896.) As the court observed, neither the legislative
history of the amendments nor the Legislature‟s declarations regarding them
manifested any intent to nullify the operation of Proposition 8. (Ibid.) Indeed,
when the Legislature amended section 1538.5 by a two-thirds majority in both
houses, the amendment was an element of a group of amendments that the
legislative history described as a “noncontroversial „clean up‟”; moreover, those
“„clean up‟” amendments were unanimously adopted by the Legislature. (Lance
W., supra, at p. 894.) The court stated: “We cannot assume that the Legislature
understood or intended that such far-reaching consequences -- virtually a
legislative repeal of the „Truth-in-Evidence‟ section of Proposition 8 -- would
follow an amendment so casually proposed and adopted without opposition.”
(Ibid.)
Based on our Supreme Court‟s analysis in Lance W., we reach a similar
conclusion regarding the abrogated exclusionary rule set forth in subdivision (d) of
section 632. Accompanying the 1985 Act was a declaration of legislative intent
that focused exclusively on the need to protect private cellular phone
communication. (Stats. 1985, ch. 909, § 2, pp. 2900-2901.) The declaration states:
“[T]his act is intended to provide recourse to those persons whose private cellular
radio telephone communications have been maliciously invaded by persons not
intended to receive such communications.” (Ibid.) The narrow scope of the
Legislature‟s intent is further confirmed by section 632.5 itself, the primary
element of the 1985 Act. That provision discloses no intent to nullify the operation
of Proposition 8, as it contains no provision akin to subdivision (d) of section 632
establishing an exclusionary rule. Appellant has directed us to no portion of the
legislative history -- and we have found none -- evincing the Legislature‟s intent to
13
annul the effects of section 28(f)(2). Because there is no suggestion that the
Legislature‟s intent in enacting the 1985 Act was to revive the abrogated
exclusionary rule contained in subdivision (d) of section 632, we conclude that
legislation did not do so.10 Accordingly, the audio recording of Stevie and
appellant‟s conversation could be excluded only under the federal exclusionary
rule applicable to evidence seized in violation of the Fourth Amendment. (Lance
W., supra, 37 Cal. 3d at p. 896.)
Thus, the remaining question is whether the United States Constitution
required exclusion of the audio recording. (Lance W., supra, 37 Cal.3d at p. 890.)
As Stevie did not record the conversation while acting as a government officer or
agent, the recording does not implicate appellant‟s interests under the Fourth
Amendment of the United States Constitution. (Jones v. Kmart Corp. (1988) 17
Cal. 4th 329, 333.) Furthermore, under federal statutory law, recordings of
conversations between private individuals made with the consent of only one party
to the conversation are ordinarily admissible in judicial proceedings. (Zhou v.
Pittsburg State University (D. Kan. 2003) 252 F. Supp. 2d 1194, 1203-1204; 18
U.S.C. § 2511(2)(d).) Accordingly, we conclude that the admission of the audio
recording did not offend the United States Constitution. (See Ratekin, supra, 212
Cal.App.3d at p. 1169.) In sum, the audio recording was properly admitted.
10 Appellant maintains that the exclusionary rule in section 632 remains effective
notwithstanding section 28(f)(2). His reliance on People v. Parra (1985) 165 Cal. App. 3d
874 (Parra), People v. Montgomery (1976) 61 Cal. App. 3d 718, People v. Strohl (1976)
57 Cal. App. 3d 347, and People v. Ayers (1975) 51 Cal. App. 3d 370, disapproved on
another ground in People v. Collie (1981) 30 Cal. 3d 43, 52-53, is misplaced. Three of
the four cases pre-date the passage of Proposition 8 in 1982. In Parra, the appellate court
did not address any contention predicated on Proposition 8, and found the pertinent
evidence admissible under section 633.5. (Parra, supra, 165 Cal.App.3d at pp. 878-881.)
14
B. Remaining Contentions
Appellant asserts two contentions arising from the prosecution‟s
presentation of a transcript of the recorded conversation to the jury. He maintains
that the trial court erred in denying a continuance to permit his expert to evaluate
the transcript, and in limiting his expert‟s testimony regarding what was said
during the recorded conversation.
1. Underlying Proceedings
In January 2012, Bob Bernstein first appeared in the underlying proceedings
as appellant‟s counsel. Soon afterward, he obtained a copy of the recorded
conversation, which he submitted to a court reporting service for transcription.
In March 2012, at the preliminary hearing, Stevie testified that she began
recording her conversation with appellant when he used the word “orgasm.” She
further stated that during the conversation, he said that when he “touch[ed her] the
last time,” she was not “wet,” which was unusual for girls her age. In addition,
according to Stevie, appellant suggested that he needed to teach her “what‟s going
on.”
On Tuesday, July 19, 2012, immediately before the selection of the jury, the
prosecutor provided the trial court and Bernstein with a transcript of the recorded
conversation, which reflected the remarks that Stevie had described during the
preliminary hearing. In response, Bernstein filed a motion for a continuance of the
trial.11
11 The motion for a continuance is not included in the record on appeal.
15
On July 18, 2012, the trial court conducted a hearing on the motion.
Bernstein stated that he requested a continuance until Monday, July 23, 2012, to
allow a forensic tape expert to analyze the recording and determine whether it had
been modified or edited. He argued that before he saw the transcript of the
recording, he did not know the prosecution intended to claim that the inculpatory
remarks Stevie ascribed to appellant were audible on the recording. He maintained
that when he had the recording transcribed, the court reporting service identified
the pertinent portions of the recording as inaudible. In response, the prosecutor
asserted that the request for a continuance was untimely, arguing that Bernstein
had adequate notice of the prosecution‟s view regarding the contents of the
recording.
In denying the request, the trial court stated: “It is the tape and not the
transcript that governs[.] . . . The exchange of the transcript is
inconsequential . . . . I will be giving an instruction . . . before the tape is played
that[] if [the jurors] see a discrepancy between what they hear and what they
read[,] . . . what they read does not govern. It‟s what they hear that governs[.]
[T]hat‟s the evidence.”
On July 18, 2012, following the selection of the jury, the prosecution began
its case-in-chief. When the audio recording was played for the jury during Stevie‟s
testimony, the court instructed the jury in accordance with its ruling.12
12 The court informed the jury: “The transcript is not the evidence. The transcript is
only to be used as an aid to let you follow along with what you hear. If you hear a
discrepancy between what is in the tape and what you read in the transcript, it is what is
in the tape that governs, that is the evidence. At the conclusion of the playing of the
[tape], we will take the transcripts away from you. You will not, repeat, will not have the
transcript in the jury room during deliberations.” Although the court later admitted the
transcript into evidence, it did not permit the jury to examine the transcript during the
jury‟s deliberations.
16
On Friday, July 20, 2012, appellant began his defense by presenting
testimony from several percipient witnesses, including himself. During the
afternoon session, the trial court conducted a hearing on the proposed testimony
from Thomas Guzman-Sanchez, appellant‟s expert in audio analysis. Bernstein
stated that in order to rebut the prosecution‟s transcript, appellant hired Guzman-
Sanchez to examine the recording for edits, and provide an alternative
interpretation of what was said during the conversation. In reply, the prosecutor
maintained that Guzman-Sanchez‟s evidence should be excluded because she first
received Guzman-Sanchez‟s report that morning. Additionally, she argued that if
the court allowed Guzman-Sanchez to testify, he should not be permitted to opine
as an expert regarding what was said during the conversation.
The trial court permitted Guzman-Sanchez to testify, subject to several
limitations. The court ruled that Guzman-Sanchez could play an enhanced version
of the recording he had prepared and opine whether he heard the disputed remarks
reflected in the prosecutor‟s transcript. However, the court excluded a transcript
that Guzman-Sanchez had prepared, and barred him from offering an opinion
regarding what appellant had said, in lieu of the remarks reflected in the
prosecutor‟s transcript. Regarding this ruling, the court stated: “[T]he expert
cannot tell me what the words are . . . . The tape is the tape. That is evidence.”
In addition, the trial court permitted Guzman-Sanchez to testify whether he
detected edits in the recording, but prohibited him from demonstrating how the
edits may have been made. The court also ruled that Guzman-Sanchez‟s testimony
was potentially subject to a “late discovery” instruction.
No proceedings occurred on Monday, July 23, 2012. The following day,
appellant called Guzman-Sanchez, who testified that he was a video forensics
investigator who also performed audio analysis. He stated that he had subjected
the audio recording provided by the prosecutor to sound wave analysis. According
17
to Guzman-Sanchez, that analysis disclosed irregularities in sound patterns
characteristic of an edit. The defense did not play the enhanced recording
Guzman-Sanchez had prepared, and he was not asked whether he heard in the
recording the disputed remarks reflected in the prosecution‟s transcript.
2. Request for Continuance
Appellant contends the trial court erred in denying his request for a
continuance to permit an analysis of the audio recording. We disagree. Generally,
a continuance may be granted only on a showing of good cause. (§ 1050, subd.
(e).) To obtain a continuance, defendants must show “they exercised due diligence
and all reasonable efforts to prepare for trial . . . .” (People v. Grant (1988) 45
Cal. 3d 829, 844.) A court has broad discretion to deny a motion for a continuance.
(Ibid.)
We find no abuse of discretion here. Although appellant‟s counsel received
the transcript shortly before trial, he had long been aware that the prosecution
planned to rely on the disputed remarks reflected in the transcript, as Stevie
testified regarding their existence during the preliminary hearing. Furthermore,
because the prosecution disclosed the audio recording well before trial, appellant‟s
counsel had ample opportunity to submit the recording to expert analysis to
determine the extent to which it supported Stevie‟s testimony. The trial court thus
did not err in denying the continuance. (See People v. Danielson (1992) 3 Cal. 4th
691, 705, overruled on another ground in Price v. Superior Court (2001) 25
Cal. 4th 1046, 1068, fn. 13 [court properly denied defendant‟s request for three-day
continuance during jury selection to permit expert to evaluate jurors‟
questionnaires when defense counsel failed to deliver them to expert in timely
manner].)
Additionally, even if appellant had established an abuse of discretion, the
18
record discloses no prejudice to appellant from the denial of the continuance.
(People v. Jackson (2009) 45 Cal. 4th 662, 678 [denial of continuance does not
support reversal of the judgment absent a showing of prejudice].) Here, appellant
sought a continuance of “at least three days” to Monday, July 23, 2012, to permit
an expert to examine the audio recording for edits, enhance it, and develop an
opinion regarding what was said during the conversation. Notwithstanding the
denial of the continuance, Guzman-Sanchez performed those tasks by Friday, July
20, 2012, well before he testified on Tuesday, July 24, 2012.
Nor did the denial of the continuance operate to curtail Guzman-Sanchez‟s
testimony regarding the matters for which appellant sought a continuance. The
trial court permitted Guzman-Sanchez to testify regarding possible tampering with
the recording. The court also made clear that it would permit the enhanced
recording Guzman-Sanchez prepared to be played, but the defense declined to do
so. Furthermore, although the court excluded Guzman-Sanchez‟s proposed
transcript and barred him from opining regarding what was said during the
conversation, for reasons explained below, those rulings were proper (see pt. B.3.,
post).13 In sum, the trial court did not err in denying the requested continuance.
3. Limitation on Expert Testimony
Appellant maintains the trial court erred in precluding Guzman-Sanchez
from presenting his interpretation of the audio recording. The crux of appellant‟s
argument is that the court unfairly permitted the prosecution to present its belatedly
disclosed transcript to the jury, while barring him from offering Guzman-
13 We recognize that the court also barred Guzman-Sanchez from demonstrating to
the jury how the tampering might have been performed. However, as appellant does not
challenge that ruling on appeal, he has forfeited any contention of error regarding it.
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Sanchez‟s opinion regarding what was said during the recorded conversation. For
the reasons discussed below, we reject appellant‟s contention.
At the outset, we observe that our inquiry has a limited scope, as appellant
forfeited material aspects of his contention. Generally, a trial court may employ at
least two procedures regarding a transcript of an audio recording, depending upon
the purpose of the transcript. If the transcript is submitted as evidence to the jury,
the court ordinarily should inquire into the accuracy of the transcript by examining
the circumstances of its preparation, listening to the audio recording, and
permitting the parties to challenge the transcript. (People v. Polk (1996) 47
Cal. App. 4th 944, 953-956.) Alternatively, if the transcript is provided only as a
guide for the jury, the court may instruct the jury regarding the transcript‟s limited
purpose, including that the transcript is not to be viewed as evidence. (People v.
Brown (1990) 225 Cal. App. 3d 585, 597-599.)
Although appellant maintains on appeal that the prosecution‟s transcript was
untimely, that it was “inflammatory,” and that its accuracy was “impossible to
verify,” he neither challenged the procedure adopted by the trial court nor
contested the presentation of the transcript on the ground that it was belatedly
disclosed to him. Rather, the remedy he sought was a continuance in order to have
an expert examine and enhance the audio recording. Accordingly, he has forfeited
any contention regarding the presentation of the prosecution‟s transcript to the
jury. (People v. Houston (2012) 54 Cal. 4th 1186, 1213-1214.)
The sole issue properly before us is whether the trial court improperly barred
Guzman-Sanchez from opining as to what was said during the conversation. We
conclude that the court‟s ruling was proper on the ground advocated by the
prosecutor and apparently credited by the court, namely, that Guzman-Sanchez‟s
interpretation of what was said during the conversation was not a proper subject of
his expert testimony.
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In contrast with the prosecution‟s transcript, which was not submitted as
evidence to the jury, appellant sought to admit Guzman-Sanchez‟s interpretation of
the recorded conversation into evidence. That interpretation -- whether offered in
the form of a transcript or in the form of opinion testimony -- was founded
exclusively on Guzman-Sanchez‟s purported expertise, as he was not a percipient
witness to the underlying conversation. Generally, “„[o]pinion testimony may be
admitted in circumstances where it will assist the jury to understand the evidence
or a concept beyond common experience. Thus, expert opinion is admissible if it
is “[r]elated to a subject that is sufficiently beyond common experience [and]
would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)‟” (People v.
Singleton (2010) 182 Cal. App. 4th 1, 20.) “Whether an expert should be permitted
to opine on a particular subject is consigned to the trial court‟s discretion.”
(People v. Sandoval (2008) 164 Cal. App. 4th 994, 1001.)
“„Expert opinion is not admissible if it consists of inferences and
conclusions which can be drawn as easily and intelligently by the trier of fact as by
the witness.‟ [Citation.]” (People v. Torres (1995) 33 Cal. App. 4th 37, 45, quoting
Evid. Code § 801, subd. (a).) Similarly, as explained in People v. King (1968) 266
Cal. App. 2d 437, 445, an expert opinion is not admissible if it concerns a subject
outside the expert‟s field of expertise. There, the trial court permitted an expert
who specialized in the analysis of recorded speech to opine regarding the identity
of a speaker in a recorded conversation. (Id. at pp. 441-457.) In reversing the
judgment, the appellate court concluded that there was no showing that the expert‟s
qualifications as an audio analyst established his expertise in recognizing speakers.
(Id. at p. 457.)
We confront a situation similar to that presented in King, as there is no
evidence that Guzman-Sanchez had any expertise superior to the abilities of the
jury regarding the recognition of words on audio recordings. Guzman-Sanchez‟s
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only demonstrated expertise concerned the enhancement of audio recordings to
make conversations on them more audible, and the analysis of sound patterns on
recordings, for purposes of locating edits and other anomalies.
According to Guzman-Sanchez, as a video forensics investigator, his
“background, training, [and] experience” lay in “[v]ideo production,” in the
“entertainment industry,” that is, “creating . . . any type of visual presentation in
the digital or analogue format.” In the entertainment industry, he worked as an
editor. After becoming a video forensics investigator, he had performed work in
criminal actions involving “[v]ideo enhancing, stabilization, [and] time/date
verification.” However, Guzman-Sanchez did not suggest that he had any special
experience or training in the recognition of words spoken in a problematic audio
recording, or that he had ever prepared a transcript from such a recording.
Accordingly, the trial court did not abuse its discretion in ruling that as an expert,
Guzman-Sanchez was not qualified to “tell [anyone] what the words are.” In sum,
the trial court did not err in precluding Guzman-Sanchez from testifying regarding
his interpretation of the audio recording.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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